Archive for December, 2009

A RETIRED judge has been called in to investigate how a mix-up over DNA evidence led to a Melbourne man being wrongly convicted and jailed for rape.

Farah Jama, 22, spent 15 months in jail after a sample of his DNA contaminated one taken from a woman believed to have been sexually assaulted in the toilet of a Doncaster nightclub.

Victoria’s Court of Appeal yesterday quashed his conviction after prosecutor Brett Sonnet admitted that a ”substantial miscarriage of justice” had occurred in the case, probably due to a mix-up at the Victorian Institute of Forensic Medicine. The institute has asked retired Supreme Court judge Frank Vincent to investigate.

A County Court jury had rejected Mr Jama’s protests that he had never been to the club or met the woman, and had been at home with his family in Preston on the night of the incident.

Mr Jama was convicted of raping a 48-year-old woman found semi-conscious in the toilet cubicle in July 2006. The woman had little memory of the night and said she had not seen any men with black skin at the over-28s venue, but swabs taken from her vagina and containing semen were matched to Mr Jama.

Mr Sonnet said it was likely the DNA sample from the woman had been contaminated since the same forensic medical officer had taken a swab from Mr Jama’s mouth in a separate investigation a day earlier. Mr Sonnet said the risk of DNA contamination had never been explained to the jury.

The case follows concern about methods used at the Victoria Police Forensic Services Centre at Macleod, which also conducts DNA testing.

The Age revealed last month that Victoria’s Director of Public Prosecutions, Jeremy Rapke, QC, had ordered police scientists to retest all DNA evidence used in prosecution cases over the past five years due to concern that low-level profiles from suspects were unreliable.

The problems have prompted the Law Institute of Victoria to warn of the dangers of convicting on DNA evidence alone. Michael McNamara, the institute’s criminal law co-chairman, said: ”People treat [DNA] as the be-all and end-all but you shouldn’t run a prosecution based on one piece of evidence, particularly where there is such room for human error.”

Opposition police spokesman Peter Ryan said the Jama case was ”a stain upon the justice system in Victoria”, adding that ”the general picture of forensics” in the state was of great concern.

The director of the Victorian Institute of Forensic Medicine, Professor Stephen Cordner, said processes on which the institute relied might have resulted in contamination of swabs taken during an examination of the alleged victim.

But Professor Cordner said the ”interpretation and utilisation of the results were not within the control of the [institute]”. He added: ”The contribution of any particular factor to the wrongful conviction is a matter of speculation at this point.”

Victoria Police moved to distance itself from the case. A media spokeswoman said police were ”aware a number of questions have been asked about [our] forensic services centre in recent weeks”, but she stressed the institute was a separate organisation contracted to provide a service to police.

”Victoria Police is confident this is an unfortunate, one-off event,” she said.

Mr Jama’s lawyer, Kimani Boden, said he would pursue compensation for his client, who was sentenced in July last year by County Court judge Paul Lacava to six years’ jail, with a minimum of four years.

The Court of Appeal released Mr Jama on bail on November 18 after Mr Boden took up the case and had him take another DNA test.

”Our scientist … couldn’t reproduce the result the Crown had,” Mr Boden said. He said the Crown had retested the same sample and confirmed the original result, but could not account for its continuity.

AN ACT relating to jurisdictional limits for Kentucky courts
Amend KRS 24A.120 to increase the jurisdictional limit of civil actions in the District Court from $4,000 to $10,000; amend KRS 24A.230 and 24A.290 to increase the jurisdictional limit of the small claims division of the District Court from $1,500 to $5,000 for both claims and counterclaims.

AN ACT relating to criminal record expungement.
Create a new section of KRS Chapter 431 to allow a person convicted of one Class D felony or a series of Class D felonies arising out of a single event to petition to have the felony record expunged under specified circumstances; amend KRS 431.078, relating to misdemeanor expungements, to begin the five-year waiting period from the date of adjudication of the offense; amend KRS 527.040, relating to possession of a firearm by a felon, to exempt individuals who have had their felony records expunged; create a new section of KRS Chapter 431 to require the Administrative Office of the Courts to keep a confidential index of expungement orders for utilization in the preparation of presentence investigations.

(Prefiled by the sponsor(s).)
To: Interim Joint Committee on Judiciary

AN ACT relating to domestic violence.
Amend KRS 403.725 to prohibit joint mediation, conciliation, or counseling requirements within an emergency protective order or a domestic violence order; amend KRS 403.740 to allow an emergency protective order to remain in effect until the domestic violence hearing, with only the summons needing to be reissued in the event of a lack of service upon the adverse party; amend KRS 403.750 to require counseling in all cases for persons against whom a domestic violence order is entered; amend KRS 403.7505 to recognize batterer intervention services within the scope of certifies counseling services; amend KRS 403.763 to increase the penalty for a third or subsequent violation of an emergency protective order or a domestic violence order to a Class D felony; create a new section of KRS Chapter 511 to create the crime of domestic violence shelter trespass.

(Prefiled by the sponsor(s).)
To: Interim Joint Committee on Judiciary

AN ACT relating to domestic relations and declaring an emergency.
Amend KRS 403.200, relating to temporary orders, to permit a court to provide for wage assignment and automatic electronic transfer of funds for payment of spousal maintenance; amend KRS 403.270, relating to custodial issues, to add the promotion of a healthy relationship between the child and other custodian or parent as a factor for the consideration of awarding custody of children; amend KRS 530.050, relating to nonsupport and flagrant nonsupport, to add spouse and former spouse; EMERGENCY.

(Prefiled by the sponsor(s).)
To: Interim Joint Committee on Judiciary

AN ACT relating to child custody.
Amend KRS 620.090 to provide that children who are in temporary custody for a period not exceeding 45 days from the date of the removal from his home may be in the custody of the Cabinet for Health and Family Services or with another appropriate person or agency.

(Prefiled by the sponsor(s).)
To: Interim Joint Committee on Health and Welfare

AN ACT relating to public records.
Create a new section of KRS 65.750 to 65.760 to restrict the availability of recordings of 911 communications to releases by court order; permit release of written transcripts of 911 communications; permit the person who made communication and person who is the subject of communication to permit release of the communication without a court order; permit acquisition of recorded copy in criminal, civil, or administrative proceedings; provide that any person may listen to, but shall not make any recordings of, 911 communications; allow written notes of the contents of the communication; prohibit making any audio recording of actual communication when authorized to make notes about the communication; establish penalty.

AN ACT relating to public safety.
Create a new section of KRS Chapter 17 to provide a registration system for persons convicted of murder, define “registrant,” and “murder,” establish period of registration, and establish penalties for failure to register.

(Prefiled by the sponsor(s).)
To: Interim Joint Committee on Judiciary

AN ACT relating to shock probation.
Amend KRS 439.265 to prohibit shock probation until either service of one year of imprisonment or completion of a comprehensive substance abuse treatment with supplemental character and education components; amend to allow victim’s next-of-kin to consent in writing to granting shock probation to the defendant; provide for short title, “The Kentuckians against Drunk Driving Act.”

(Prefiled by the sponsor(s).)
To: Interim Joint Committee on Judiciary

AN ACT relating to driving under the influence.
Amend KRS 189A.005 to expand the definition of “ignition interlock device”; amend KRS 189A.010 to include driving the wrong way on a four-lane highway among the list of factors for triggering aggravated DUI penalties; amend KRS 189A.070 to provide that a reduction in the time period of a license revocation does not lessen the time required for ignition interlock usage; amend KRS 189A.085 to run the period of a license plate impoundment from the date of sentencing to the day the offender is authorized to resume driving; amend KRS 189A.340 to require ignition interlock usage beginning with the first DUI offense and to remove an offender’s ability to drive a non-interlock-equipped work vehicle; amend KRS 189A.410 to require ignition interlock usage while an offender is driving on a hardship license.

(Prefiled by the sponsor(s).)
To: Interim Joint Committee on Judiciary

AN ACT proposing an amendment to Section 145 of the Constitution of Kentucky relating to persons entitled to vote.
Propose to amend Section 145 of the Constitution of Kentucky to exclude a convicted felon from the right to vote only until expiration of probation, final discharge from parole, or maximum expiration of sentence; submit to the voters for ratification or rejection.

(Prefiled by the sponsor(s).)
To: Interim Joint Committee on State Government

AN ACT relating to crimes and punishments.
Amend KRS 532.356 to remove the provisions requiring the withdrawal of driving privileges for persons convicted of a theft offense who have not paid court ordered restitution; include non-codified transitional provisions for persons whose driving privileges had been previously removed.

(Prefiled by the sponsor(s).)
To: Interim Joint Committee on Judiciary

AN ACT relating to personal communication devices.
Create a new section of KRS Chapter 189 to prohibit the use of a personal communication device for any person under the age of 18 while operating a motor vehicle; provide for exclusions; create a new section of KRS Chapter 189 to prohibit text messaging while operating a motor vehicle; provide for certain exclusions; amend KRS 189.990 to set penalties for violations for this Act; provide for a probationary period ending November 1, 2010, where courtesy warnings will be issued; set a fine of $50 for each offense after the probationary period; exempt fines from court costs.

(Prefiled by the sponsor(s).)
To: Interim Joint Committee on Transportation

AN ACT relating to the operation of golf carts on public roads.
Amend KRS 189.286, relating to the ability of local governments to allow operation of golf cart on roads under their control, to expand the allowable distance from a golf course from five miles to seven miles.

(Prefiled by the sponsor(s).)
To: Interim Joint Committee on Transportation

AN ACT relating to the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.
Create new sections of KRS Chapter 387 to enact the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, as recommended to the states by the National Conference of Commissioners on Uniform State laws, to govern jurisdictional questions and disputes between states in regard to cases concerning guardians and conservators; amend KRS 387.520 to conform.

AN ACT relating to the use of global positioning monitoring systems including monitoring-related restrictions and sanctions in domestic violence cases.
Amend KRS 403.720 relating to domestic violence definitions to define “global positioning monitoring system”; amend KRS 403.740 relating to emergency protective orders to permit a court to restrain a respondent from going to or near specified locations; amend KRS 403.750 relating to domestic violence orders to permit court a to restrain a respondent from going to or near specified locations; create a new section of KRS Chapter 403 to permit the petitioner in a domestic violence order case to inform the court of places the petitioner does not want the respondent to go into or near; create a new section of KRS Chapter 403 to require the court to assess the respondent’s dangerousness; create a new section of KRS Chapter 403 to a permit court, as part of a domestic violence order, to order a respondent to wear or carry global monitoring system device and permit a petitioner to carry a device notifying the petitioner that the respondent is nearby; require the court to notify the petitioner of the operation and limitations of global positioning monitoring system devices, and provide a penalty for removing or tampering with the device; create a new section of KRS Chapter 403 to require the Department of Corrections to contract with entities providing global positioning system monitoring services to provide services meeting the requirements of the statutes; name act the Amanda Ross Domestic Violence Prevention Act.

(Prefiled by the sponsor(s).)
To: Interim Joint Committee on Judiciary

AN ACT relating to crimes and punishments.
Amend KRS 500.080 to include loss of consciousness within the definition of physical injury; amend KRS 508.020 to include intentionally or wantonly causing physical injury by means of strangulation within the offense of assault in the second degree.

(Prefiled by the sponsor(s).)
To: Interim Joint Committee on Judiciary

FRANKFORT, Ky. — An advisory group of judges, prosecutors, defense lawyers and law professors seeking common ground to ensure proper funding of the state’s criminal justice system forwarded its findings today to Gov. Steve Beshear and the leadership of the Kentucky General Assembly for their consideration in the budget-making process.

The Kentucky Bar Association’s Criminal Justice Roundtable recommended the development of a common effort to seek adequate funding for prosecutors and public defenders and outlined several “common principles” for reporting case numbers presented by the Kentucky Department of Public Advocacy (DPA), the state’s Unified Prosecutorial System comprised of County Attorneys and Commonwealth’s Attorneys under the chairmanship of the state Attorney General’s Office, and the state Administrative Office of the Courts (AOC).

“Especially now, when faced with these tough economic times, it is critical that judges, prosecutors and public defenders work together to ensure adequate funding for the proper functioning of the criminal justice system,” the recommendations state. “The influx of cases and the workload of the courts are beyond the control of the judiciary, the prosecution and the defense. Their roles and responsibilities are not discretionary — they have no ability to reduce or limit the demands placed on them by constitutional requirements and statutorily imposed duties, including the right to counsel, the right to a speedy trial and the right to due process. These are rights that are mandated by law and essential to a free and safe society. Adequate resources must be provided to comply with this mandate and to protect the citizenry and all those who come before the courts seeking justice.”

Case number calculations are often used by each group to demonstrate the amount of work accomplished and the amount of funding necessary to fulfill each organization’s constitutional duties. While a strict, uniform method of counting cases may not be possible at the current time, “prosecutors and public defenders should identify total cases as the number of cases opened each year, plus the cases carried over into the next year,” according to the recommendations adopted by the roundtable. “Additionally, if workload is to be accurately and equally measured, both the prosecution and defense should count probation revocation cases.”

In seeking funding requests, the roundtable urged prosecutors and public defenders to establish a common funding formula “that will facilitate proper, uniform and balanced allocation of needed resources for both of their essential functions, as well as that of the entire criminal justice system.”

KBA President Charles E. “Buzz” English, Jr., of Bowling Green said the association formed the Criminal Justice Roundtable and its subcommittee in October to foster better communication on issues central to the advancement of justice in the Commonwealth.

“As an integrated bar representing all Kentucky lawyers, the Kentucky Bar Association is interested in advancing these interests and improving the effective administration of justice in the courts of our Commonwealth,” English said. “By convening and facilitating this discussion, we hope to promote communications and cooperation among the key players in the interest of all stakeholders, the most important being the public at large.”

Edward C. Monahan, Public Advocate for the state DPA, said that “while we stand in different places in the courtroom, we can and should join together to seek adequate funding for Kentucky’s criminal justice system to ensure fair process, reliable results and public safety. The work of the KBA Roundtable under the leadership of our KBA President significantly helps on this important journey of achieving adequate funding for the good of the Commonwealth.”

Allen C. Trimble of Williamsburg, Commonwealth Attorney of the 34th Judicial Circuit and president of the Kentucky Commonwealth’s Attorney’s Association, said the criminal justice system is only able to serve the public when all aspects of the system are properly funded.

“If the system is not properly funded, victims, defendants and the public in general suffer,” Trimble said.

The recommendations adopted by the roundtable were forwarded by a subcommittee comprised of co-chairs Hon. Martin E. Johnstone, Supreme Court of Kentucky (Retired), and Professor William H. Fortune, University of Kentucky College of Law; as well as Monahan, Professor Leslie W. Abramson, Brandeis School of Law at the University of Louisville; Mike Bowling, Former Chair, House Judiciary Committee; Hon. J. Michael Brown, Secretary of the Justice Cabinet; Christopher T. Cohron, Commonwealth’s Attorney (8th Judicial Circuit); Jerry J. Cox, Attorney, Mt. Vernon; Daniel T. Goyette, Louisville Metro Public Defender and President of the Kentucky Association of Criminal Defense Lawyers; and Rob Jones, Executive Director, Finance and Administration Cabinet Office of Policy & Audit.

The Kentucky Bar Association, headquartered in Frankfort, is a professional integrated bar association and an agency of the Supreme Court of Kentucky. Its authority to regulate the legal profession in Kentucky, delegated by the Supreme Court of Kentucky through rules, is derived from the Kentucky Constitution.

NEW ALBANY, Ind. — A former Indiana state trooper will face a third trial in the shooting deaths of his wife and children.

Floyd County Prosecutor Keith Henderson announced Thursday that he’ll refile murder charges against David Camm in the Sept. 28, 2000, killings of Kimberly Camm and their children, 5-year-old Jill and 7-year-old Bradley.

Camm has been convicted twice of killing his family at their home in the southern Indiana town of Georgetown. Both convictions were overturned on appeal.

Camm’s lawyers want a judge to appoint a special prosecutor because Henderson had negotiated a deal to write a book about the case. Henderson says the deal was canceled once the Indiana Supreme Court overturned Camm’s conviction in June.

His announcement of a third trial when a court is considering recusing from prosecuting Camm is sure to raise judicial eyebrows.

Critics (supported by two Sup. Court reversals) suggest that Prosecutor Henderson is incapable of conducting a fair trial against CAMM. He twice has introduced improper evidence, and has frequently made questionable statements in press conferences which may have prejudiced the jury pool.

Another man has been convicted of killing the Camm family, but the last trial restricted introduction of evidence of the other mans conviction. The former state trooper was first tried as the killer, and on the second trial it was suggested he conspired with the real killer to dispose of his family. Henderson has twice introduced claims of child sexual abuse against Camm even though the courts have ruled that there is no proof for the prosecutor’s claim that the child was sexually molested.

The prosecutor signed a book deal after the second conviction was on appeal, but upon reversal for the second time says he dropped his book deal. Critics say he would benefit personally from a third trial.

In a constitutional challenge involving a Minnesota law firm, the U.S. Supreme Court on Tuesday seemed troubled by a federal restriction on legal advice to potential bankruptcy clients, but less concerned about the requirement that lawyers advertise as a “debt relief agency” if they give bankruptcy advice.

The justices heard arguments in Milavetz, Gallop & Milavetz v. U.S., one of three bankruptcy cases on the Court’s docket this term.

Milavetz, a general-practice law firm in Edina, Minn., is challenging several provisions of the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act. The firm contends that, if those provisions are applied to lawyers, they would violate the First Amendment, put lawyers in conflict with state ethics regulations and compel lawyers to make misleading disclosures in their advertising.

“This provision requires truncated advice,” he said, adding that the practical effect is to make it impossible for lawyers to comply with their ethical obligation to truthfully advise a client.

The provision also has a chilling effect on lawyers, Brunstad said, noting that penalties for violating the provision are serious and have driven “conscientious bankruptcy lawyers” from this practice area.

Assistant to the Solicitor General William Jay countered that the restriction on advice is limited to advice intended to abuse the bankruptcy system. But he quickly ran into a fast series of questions and hypotheticals from a skeptical Chief Justice John Roberts Jr.

“Under your construction, it seems a lawyer trying to give correct, ethical advice has to pause before every sentence,” Roberts said. “This is a regulation of the attorney-client relationship to pursue an unrelated objective.”

Jay insisted the objective was not unrelated. “The statute protects the client from unethical advice,” he said. “The attorney is the sophisticated player here.”

Brunstad told the justices that they could avoid the constitutional issues raised by the advice prohibition and a requirement that attorneys giving bankruptcy advice disclose in advertisements that they are a “debt relief agency” if the justices find that lawyers are not covered by the debt relief agency provisions.

Justices Stephen Breyer and Ruth Bader Ginsburg challenged his argument that the statute’s language did not explicitly include lawyers as other provisions in the Bankruptcy Code do.

The definition of bankruptcy assistance, Breyer said, includes “provides legal representation,” which implies lawyers. And Ginsburg said the 2005 law’s legislative history included examples of lawyer misconduct.

Brunstad called those examples “scattered” and said Congress actually intended to clamp down on abuses by nonlawyer bankruptcy-petition preparers.

The Milavetz case is an appeal from the 8th U.S. Circuit Court of Appeals, which found the advice prohibition unconstitutional, but which upheld the other challenged provisions.